Even the dullest 1L can tell you that rule 12(b) sets the timing for motions to dismiss:
A motion asserting any of [the 12(b)] defenses must be made before pleading if a responsive pleading is allowed.
However, pursuant to 12(h), the defenses listed in 12(b)(2)-12(b)(5) are not actually waived as long as you include them as an affirmative defense in your answer (12(b)(1) and (b)(6) have separate rules).
A party waives any defense listed in Rule 12(b)(2)–(5) by . . failing to either:(i) make it by motion under this rule; or include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course
So then, if these defenses aren't waived, when can you bring a motion? Can you do it anytime? Do you have to wait for the dispositive motion deadline in the scheduling order? Post-trial briefing? Kneeling before Gorlach the devourer at the end of all things?
That's the question Judge Andrews answered this week in Genzyme Corp. v. Novartis Gene Therapies, Inc., C.A. No. 21-1736-RGA (D. Del. Feb. 13, 2023) (Mem. Op.).
One of the defendants had a personal jurisdiction defense that it included in the answer. Seven weeks later, they filed a motion to dismiss under 12(b)(2) for lack of personal jurisdiction.
Plaintiffs challenged the motion as untimely, arguing (as Judge Andrews summarized) "that Novartis AG's motion is procedurally improper because it was filed after Defendants' answer to the complaint, but too soon for any other kind of dispositive motion."
Judge Andrews ultimately decided the motion was timely, despite the language of Rule 12(b):
Courts, including this Court, generally allow Rule 12(b) motions filed after the answer to a complaint if the Rule 12(b) defense was raised in the answer. See, e.g. , Martin v. Del. Law Sch. of Widener Univ., 625 F. Supp. 1288, 1296 n.4 (D. Del. 1985). See generally 5C CHARLES ALAN WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 1361 n.7 (3d ed. 2022). I conclude that Novartis AG's motion is procedurally proper.
Id. at 5-6.
I feel a bit better about having to look this issue up given that the main citation was to a case almost as old as I am (the defendant had managed to find several other citations from other districts in the Third Circuit).
As a practical matter, it also makes sense that this doesn't come up terribly often. A defendant generally prefers to raise what they can as an immediate motion, rather than going through the trouble of answering—which quickly leads to a scheduling order and related discovery. But if it comes up in one of your cases, now you know.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
